Obama’s Drone Attack on Your Due Process

By Noah Feldman -
Feb 8, 2013

The biggest problem with the recently
disclosed Obama administration white paper defending the drone
killing of radical clerk Anwar al-Awlaki isn’t its secrecy or
its creative redefinition of the words “imminent threat.” It
is the revolutionary and shocking transformation of the meaning
of due process.

Fortunately, as seen during John Brennan’s confirmation
hearing for Central Intelligence Agency director, Congress is
starting to notice.

Due process is the oldest and most essential component of
the rule of law. It goes back to the Magna Carta, when the
barons insisted that King John agree not to kill anyone or take
property without following legal procedures.

What they meant -- and what has been considered the essence
of due process since -- is that the accused must be notified of
the charges against him and have the opportunity to have his
case heard by an impartial decision maker. If you get due
process, you can’t complain about the punishment that follows.
If you don’t get that opportunity, you’ve been the victim of
arbitrary power.

Are U.S. enemies entitled to due process? Well, no -- not
if they are arrayed against the country on the battlefield. In
war, you don’t try the enemy. You kill him, preferably before he
kills you. And if some of the Japanese troops at Guadalcanal had
held U.S. citizenship, it wouldn’t have suddenly given them due
process rights. If Awlaki was an enemy fighting on the
battlefield, he wouldn’t have deserved due process while the
fight was on. Off it, he should legally be like any other U.S.
citizen, innocent until proven guilty.

Generous Idea

Yet, despite claiming that the Awlaki killing was justified
because he was an operational leader of al-Qaeda, and thus in
some sense an enemy on the battlefield, the white paper still
assumes that due process applies to U.S. citizens abroad who
adhere to the enemy. On the surface, this sounds plausible and
even generous: Why not consider the possibility that a U.S.
citizen abroad has some rights against being killed out of the
blue?

In fact, though, applying due process analysis to Awlaki
produces a legal disaster. The problem is, once you consider due
process, you have to give it some meaning -- and the meaning you
choose will cast a long shadow over what the term means
everywhere else.

The white paper uses two Supreme Court cases to assess what
process is due to an American about to be killed by a drone. The
first, Mathews v. Eldridge, is a 1976 case in which the court
held that the elaborate administrative processes necessary after
a person lost his Social Security disability benefits were
constitutionally acceptable even though there was no evidentiary
hearing before the benefits were terminated. In that case, the
court said that the process due could be determined by balancing
the individual’s interest against the government’s.

The other case was 2004’s Hamdi v. Rumsfeld, where the
court held that a detained enemy combatant -- in custody, not on
the battlefield -- must receive “notice of the factual basis
for his classification, and a fair opportunity to rebut the
Government’s factual assertions before a neutral decision-
maker.”

Astonishingly, the white paper follows its summary of these
decisions with the bald assertion that a citizen outside U.S.
territory can be killed if a high-level official determines that
he poses an imminent threat, it would be unfeasible to capture
him and the laws of war would otherwise permit the killing.

Never Explained

The non sequitur is breathtaking. Awlaki wouldn’t receive
notice, the opportunity to be heard or a hearing before a
decision maker. In other words, he would receive none of the
components of traditional due process -- not even one. How the
absence of due process could be magically transformed into its
satisfaction is never stated or explained. All we get is the
assertion that a target’s interest in life must be “balanced
against” the government’s interest in protecting other
Americans. On this theory, no due process would be due to those
accused of murder, because their lives would have to be balanced
against the government’s interest in protecting their potential
victims.

The cases cited by the white paper provide no precedent for
the idea that due process could be satisfied by some secret,
internal process within the executive branch -- not that any
such process is even mentioned. The reason they don’t is
obvious: There is no such precedent. Never, to my knowledge, in
the history of due process jurisprudence, has a court said that
a neutral decision maker wasn’t necessary. And as Justice Felix
Frankfurter wrote in language cited in the Mathews case, “the
essence of due process is the requirement that a person in
jeopardy of serious loss [be given] notice of the case against
him and opportunity to meet it.”

Although the white paper doesn’t say so, Awlaki even tried
to get a hearing before he was killed. His father asked a
federal court to find that he wasn’t a terrorist. But the court
never heard his claim, because the Obama administration
persuaded it not to consider the case.

When Paul Clement, solicitor general under George W. Bush,
told the Supreme Court in the Hamdi oral argument that Hamdi had
been given the opportunity to be heard during his interrogation,
a notable gasp went through the courtroom. Justice Sandra Day O’Connor later singled out this outrageous claim for special
criticism.

The Obama administration’s apparent belief that due process
can be satisfied in secret inside the executive branch
is arguably a greater departure from precedent. It is a travesty
of the very notion of due process. And to borrow a phrase from
Justice Robert Jackson, it will now lie about like a loaded
weapon ready for the hand of any administration that needs it.

The white paper should have said that due process doesn’t
apply on the battlefield. By instead making due process into a
rubber stamp, the administration is ignoring precedent and
subverting the idea of the rule of law. When is some law worse
than none? When that law is so watered down that it loses the
meaning it has had for 800 years.

(Noah Feldman, a law professor at Harvard University and
the author of “Scorpions: The Battles and Triumphs of FDR’s
Great Supreme Court Justices,” is a Bloomberg View columnist.
The opinions expressed are his own.)

To contact the writer of this article:
Noah Feldman at noah_feldman@harvard.edu.